Internet Privacy Getting the Short End of the Stick

Stan Ward

March 9, 2017

Lost in all the commotion over the net neutrality fracas is the fate of internet privacy, according to a recent article in The Hill. At issue, as the Federal Communications Commission moves to undo Obama-era rules, are questions concerning how much authority the FCC should have over internet companies.

Also of paramount importance is whether the government is doing enough to ensure that broadband companies are providing sufficient data security for customers amid a climate of massive website hacking.

There is growing concern among privacy advocates because the new Republican Chairman of the FCC, Ajit Pai, last week advocated blocking a rule requiring internet service providers to bolster efforts to safeguard customers’ data. Among these efforts are rules presently in place which require ISP’s to get permission from consumers before selling their data to advertisers, or using it themselves for the same purposes.

Pai’s potential approach is a bit baffling because, although one understands the Republican’s distaste for regulation, personal users’ security concerns shouldn’t be a bargaining chip. Consumer protection can and should be a centerpiece of any FCC dictum, regardless of the structure of the finished product.

The big broadband providers, for their part, contend that the rules as now written are to biased against them, and are unevenly applied. They claim, for example that they are held to stricter privacy standards than web companies like Facebook and Amazon, and are therefore are burdened with added security-related issues.

Pai and his cohorts, moreover, claim that the Federal Trade Commission’s (FTC) edicts clash with those of the FCC, and that the result portends unwarranted confusion because the FTC has traditionally been responsible for enforcement actions.

The FTC also contends that the current FCC regulations infringe upon its role and jurisdiction, and thus usurp its authority. Pai, therefore, as a minority Republican member of the FCC at the time of Obama/Wheeler’s rules changes, voted against the changes, including the enhanced security, as they deviated from the FTC’s privacy framework.

Democrats are obviously upset about this outcome, and posit that the customers, absent this security measure, will now be vulnerable to hacking. Pai and his Republican counterpart at the FTC, Maureen Ohlhausen, will now collaborate to produce what they deem to be rules which are more consistent with the mission of the two agencies, and fairer to both broadband providers and internet companies.

It is the hope of Republicans that these new initiatives, as well as rollbacks by Pai at the FCC, may put the “regulation genie” back in the bottle. The FTC and the FCC will have to work hand-in-glove in this matter, because the FTC as an enforcing arm is navigating murky waters. Last year, a federal judge ruled that the FTC didn’t have the authority over the FCC to regulate internet providers. Some legislators on both sides of the aisle are calling on Congress to clarify the roles of the FCC and the FTC on this important issue that has serious ramifications for consumers.

“There is a potential gap right now in the jurisdiction of the two agencies, which Congress ought to remedy by removing the so-called common carrier exemption, and then the FTC would have authority over all of the providers in the internet ecosystem,” said Randolph May, president of the Free State Foundation, a conservative think-tank, which has not surprisingly supported Pai’s moves.

And also unsurprisingly it laid the blame for the confusion at the feet of the Obama administration, saying it created the mayhem by introducing the new rules in 2015.

In his new role, Pai asserts that a worthwhile goal of any new measures should be to make regulations fair and applicable to both ISPs and online companies. I am unmoved by all the posturing and grandstanding by the politicians and their appointees, for it appears that the rules will only be as strong as whoever is in control of a majority in Congress at the time.